Patin v. Ton Vinh Lee
Patin v. Ton Vinh Lee
Opinion of the Court
*1249Under NRS 41.660(1), Nevada's anti-SLAPP (Strategic Lawsuit Against Public Participation) statute, a defendant may file a special motion to dismiss a plaintiff's complaint if the complaint is based upon the defendant's "good faith communication in furtherance of the right to petition or the right to free speech in direct connection with an issue of public concern." NRS 41.637 provides four alternative definitions for what can constitute a "good faith communication in furtherance of the right to petition or the right to free speech in direct connection with an issue of public concern," one of which includes a "statement made in direct connection with an issue under consideration by a ... judicial body." NRS 41.637(3). In this appeal, we must determine whether an attorney's statement on a website summarizing a jury's verdict is a statement in direct connection with an issue under consideration by a judicial body. We adopt California's framework for evaluating such statements, which requires the statement to (1) relate to the substantive issues in the litigation and (2) be directed to persons having some interest in the litigation. Because the statement in this case failed to satisfy either of these requirements, it does not fall within NRS 41.637(3) 's definition, and the district court correctly denied appellants' special motion to dismiss.
FACTS AND PROCEDURAL HISTORY
In a previous case, appellants Ingrid Patin and Patin Law Group represented a client in a dental malpractice lawsuit against Summerlin Smiles, Dr. Florida Traivai, and respondent Dr. Ton Vinh Lee. After trial, a jury rendered a $3.4 million verdict in favor of Patin's client. In so doing, the jury determined that Summerlin Smiles and Dr. Traivai had been negligent but that Dr. Lee had not been negligent. Thereafter, Summerlin Smiles and Dr. Traivai moved to vacate the jury's verdict, which the district court granted in 2014. Patin's client appealed that order, and in 2016, this court reversed and directed the district court to reinstate the jury's verdict. That reversal, however, did not affect Dr. Lee since Patin's client had not challenged the portion of the jury's verdict that found Dr. Lee was not negligent.
At some point between when the jury's verdict was entered and when this court directed the district court to reinstate the jury's verdict, Patin posted on her law firm's website the following statement:
DENTAL MALPRACTICE/WRONGFUL DEATH - PLAINTIFF'S VERDICT $3.4M, 2014 Description: Singletary v. Ton Vinh Lee, DDS, et al.
A dental malpractice-based wrongful death action that arose out of the death of Decedent Reginald Singletary following the extraction of the No. 32 wisdom tooth by Defendants on or about April 16, 2011. Plaintiff sued the dental office, Summerlin Smiles, the owner, Ton Vinh Lee, DDS, and the treating dentists, Florida Traivai, DMD and Jai Park, DDS, on behalf of the Estate, herself and minor son.
(Emphasis added.) Thereafter, Dr. Lee filed the underlying action asserting a single claim of defamation per se, which was based on the premise that the emphasized portion of Patin's statement could be construed as stating that the jury found Dr. Lee to have been negligent, which, as indicated, was false. In response, Patin filed a special motion to dismiss pursuant to NRS 41.660(1). Among other things, Patin argued that the statement was a "statement made in direct connection with an issue under consideration by a ... judicial body," NRS 41.637(3), such that the statement constituted a "good faith communication in furtherance of the right to petition or the right to free speech in direct connection with an issue of public concern" that per NRS 41.660(3)(a) could not form the basis for defamation liability. The district court denied Patin's motion, reasoning that because the statement did not reference the pending appeal in the dental malpractice case, the statement was not in direct connection with an issue under consideration by a judicial body. The district court alternatively concluded that even if the statement had fallen within NRS 41.637(3) 's definition, dismissal was still not warranted as Dr. Lee had "demonstrated with prima facie evidence a probability of prevailing on [his] claim," NRS 41.660(3)(b), *1250by providing an interpretation of Patin's statement that could be construed as false and defamatory.
DISCUSSION
Because resolution of this appeal involves a single matter of statutory interpretation, we review de novo the district court's denial of Patin's special motion to dismiss. Pawlik v. Deng, 134 Nev. ----, ----,
As indicated, resolution of this appeal implicates a single issue of statutory interpretation: whether Patin's statement regarding the jury verdict in the dental malpractice case is a "statement made in direct connection with an issue under consideration by a ... judicial body" under NRS 41.637(3). Because no Nevada precedent is instructive on this issue, we look to California precedent for guidance. See Shapiro v. Welt, 133 Nev. ----, ----,
California's analogous anti-SLAPP statute protects "any written or oral statement or writing made in connection with an issue under consideration or review by a ... judicial body."
On appeal, the Neville court canvassed California precedent regarding the meaning of "in connection with" as used in section 425.16(e)(2).
Next, the Neville court evaluated Healy v. Tuscany Hills Landscape & Recreation Corp.,
The Neville court then evaluated Contemporary Services Corp. v. Staff Pro Inc.,
After having reviewed Paul, Healy, and CSC , the Neville court synthesized the holdings in those cases and concluded that a statement is "made in connection with an issue under consideration or review by ... a judicial body" for purposes of section 425.16(e)(2) if the statement "relates to the substantive issues in the litigation and is directed to persons having some interest in the litigation."
We are persuaded by the Neville court's analysis and conclude that in order for a statement to be protected under NRS 41.637(3), which requires a statement to be "in direct connection with an issue under consideration by a ... judicial body" (emphasis added), the statement must (1) relate to the substantive issues in the litigation and (2) be directed to persons having some interest in the litigation. If we were to accept Patin's argument that simply referencing a jury verdict in a court case is sufficient to be in direct connection with an issue under consideration by a judicial body, we would essentially be providing anti-SLAPP protection to "any act having any connection, however remote, with *1252[a judicial] proceeding." Paul,
Having adopted the Neville court's standard for what qualifies for protection under NRS 41.637(3), it is clear that Patin's statement fails to meet that standard. First, even if the statement had mentioned the pending appeal, it still did not relate to any substantive issues in the appeal or the district court proceedings. Second, the statement was not directed to any specific person or group, let alone to someone with an interest in the litigation.
We are not persuaded that Patin's other arguments on appeal warrant reversal. Although Patin argues that the statement is protected by the fair report privilege, she has not cited any authority for the proposition that an affirmative defense such as the fair report privilege can be asserted within the confines of an anti-SLAPP motion to dismiss, see Edwards v. Emperor's Garden Rest.,
CONCLUSION
NRS 41.637(3) provides anti-SLAPP protection for a "statement made in direct connection with an issue under consideration by a ... judicial body." For a statement to fall within this definition, the statement must (1) relate to the substantive issues in the litigation and (2) be directed to persons having some interest in the litigation. Because Patin's statement regarding the jury verdict in the dental malpractice case against Dr. Lee did not satisfy either of these requirements, the statement was not protected under NRS 41.660, Nevada's anti-SLAPP statute. We therefore affirm the district court's order denying Patin's special motion to dismiss.
We concur:
Douglas, C.J.
Cherry, J.
Gibbons, J.
Pickering, J.
Hardesty, J.
Stiglich, J.
The Legislature amended the anti-SLAPP statute in 2015. Among other things, the amendments require a plaintiff in the second step of the anti-SLAPP analysis to demonstrate with "prima facie evidence," instead of "clear and convincing evidence," a probability of prevailing on the claim. 2015 Nev. Stat., ch. 428, § 13, at 2455. To the extent Patin has not conceded that the district court correctly applied the 2015 anti-SLAPP statute, any such argument is moot because, as explained below, Patin failed to satisfy her burden under the first step.
Because this appeal involves a single matter of statutory interpretation, we need not address what effect the above-mentioned 2015 amendments have on this court's standard of review for an anti-SLAPP motion. See Shapiro v. Welt, 133 Nev. ----, ----,
In this respect, Patin's reliance on case law discussing the filing of a lawsuit as being protected speech are inapposite. Dr. Lee is not challenging Patin's client's decision to file a lawsuit against him, but is instead challenging Patin's statement regarding the lawsuit's result.
Patin's argument that the statement is protected by the absolute litigation privilege fails for the same reason. See Shapiro, 133 Nev. at ----,
Reference
- Full Case Name
- Ingrid PATIN, an Individual and Patin Law Group, PLLC, a Professional LLC v. TON VINH LEE
- Cited By
- 12 cases
- Status
- Published